Com. v. Lofton, H. ( 2021 )

J-S13028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HAKIM LOFTON :
:
Appellant : No. 1980 EDA 2020
Appeal from the Judgment of Sentence Entered September 28, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004726-2019
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED JULY 23, 2021
Appellant, Hakim Lofton, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his bench
trial convictions for aggravated assault, possessing an instrument of crime,
simple assault, and recklessly endangering another person.1 We affirm.
The trial court opinion set forth the relevant facts of this case as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia Police Officers Booker and Nuss, and Transit
Police Officers McEwan and Nixon of the Southeastern
Pennsylvania Transit Authority (SEPTA). The
Commonwealth’s evidence also included videos taken from
the body-worn cameras of Officers Nuss and Nixon, as well
as a video of the assault recorded by a security camera.
[Appellant] testified on his own behalf. Viewed in the light
most favorable to the Commonwealth as the verdict winner,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a), 907(a), 2701(a), and 2705.
J-S13028-21
the evidence established the below facts.
On May, 4, 2019, at approximately 9:00 p.m., while driving
his patrol car near the 2800 block of Somerset Street in the
Kensington section of Philadelphia, Officer Booker noticed a
man in the middle of the street holding the side of his neck
with one hand and waving his other hand in the air to get
the officer’s attention. Officer Booker stopped his patrol car,
and the man, later identified as Eric Luper, told Officer
Booker that he had been stabbed near that location. Officer
Booker observed that the left side of Mr. Luper’s neck had
two puncture wounds, which were still actively bleeding.
Soon thereafter, Officer Nuss arrived. Officer Booker then
took Mr. Luper into his patrol car at approximately 9:08 p.m.
and began driving him towards Temple University Hospital
for treatment.
Officer Nuss stayed behind to survey the area for any
witnesses to the stabbing. He also activated his body-worn
camera. The video from his camera was admitted at trial as
Commonwealth Exhibit C-3 (“Exh. C-3”). At approximately
9:08 p.m., Office Nuss encountered a woman named
Omayra Echevarria, who was visibly shaking, stuttering her
words, and talking quickly and loudly about the stabbing to
an unidentified female on the street. Officer Nuss
approached Ms. Echevarria, who at that time was stating to
the female, “so the dude went like this with a knife,” while
holding her right arm up high in the air. Officer Nuss asked,
“Ma’am, what did he look like?” Ms. Echevarria described
the stabber to Officer Nuss as a skinny, black male who was
about the same height as Officer Nuss and who was wearing
red pants and a “wife-beater” t-shirt. Officer Nuss then
immediately used his radio to relay Ms. Echevarria’s
description to his fellow officers. Ms. Echevarria further
stated that, after the stabbing, the stabber ran toward the
nearby “El” station stop.
Officer Nuss’s partner, Officer McEwan, also was present at
the scene. After the officers asked where the stabbing took
place, Ms. Echevarria led them down the street and pointed
out a pillar outside a grocery store located at 2769
Kensington Avenue. She explained that the victim was
standing at the pillar, that Ms. Echevarria was standing a
few feet away, and that the stabber came up from behind
-2-
J-S13028-21
them and stabbed the victim. She further stated that the
stabber said nothing before stabbing the victim. Ms.
Echevarria made all of the aforementioned statements to
the officers within the first four minutes of initially being
approached by Officer Nuss. She was visibly shaking and
speaking quickly throughout the time she was with the
officers. At one point, Officer Nuss instructed Ms. Echevarria
to breathe in an apparent effort to calm her down.
After Officer McEwan noticed security cameras out front of
the grocery store, he went inside and successfully recovered
video from a camera that had captured the stabbing. The
video was admitted at trial as Commonwealth Exhibit C-5
(“Exh. C-5”). The video revealed that two or three people
were standing right in front of the pillar identified by Ms.
Echevarria when a person with a white t-shirt walked
northbound towards them, stopped in front of the pillar, and
swung an arm down towards another person who was also
wearing a white t-shirt. The victim then ran away while the
stabber paused for a few moments before crossing the
street.
At approximately 9:00 p.m. that same evening, SEPTA
Transit Officer Nixon was on patrol nearby with his partner
at the platform for SEPTA’s Somerset Station. Upon hearing
his partner tell someone to “drop the knife,” Officer Nixon
looked down the steps of the platform towards his partner
and saw [Appellant]. Officer Nixon observed [Appellant]
running up the stairs of the platform holding a knife that
appeared to be approximately six to eight inches long.
Officer Nixon had his taser out, his partner drew her gun,
and then [Appellant] immediately dropped the knife.
Officer Nixon and his partner had [Appellant] sit down on
the steps and asked him why he had a knife. [Appellant]
repeatedly claimed that he stabbed that “motherfucker”
because the person had a gun. At some point, Officer
Nixon’s body-worn camera was activated, and the video
from the camera was admitted at trial as Commonwealth
Exhibit C-4 (“Exh. C-4”). The video from Officer Nixon’s
body camera shows that [Appellant] was wearing red pants
and a white t-shirt. [Appellant] described the person he
stabbed to the officers as a person who was six feet tall and
wearing a white t-shirt. Based on his observations of
-3-
J-S13028-21
[Appellant] at that time, Officer Nixon believed [Appellant]
to be under the influence of drugs or alcohol. The officers
brought [Appellant] up to the street and placed him in the
back of a police car. While in the vehicle, [Appellant]
complained to Officer Nixon that the handcuffs were too
tight and then threatened that he would kill Officer Nixon if
he did not take off the handcuffs. [Appellant] also spit at
Officer Nixon through the lowered window of the police car.
At trial, [Appellant] elected to testify in his defense and
claimed that he “cut” the person pictured in the video only
because the person had a gun and was robbing him. More
specifically, he testified as follows:
[O]n the day of May 4th I was standing by the beer
and convenience store and the victim – that’s the
victim – and I’m a victim myself – he came up and
snatched my money out of my hand. He snatched my
money out of my hand and snatched my K2. I was
high off the drugs of K2. He pulled – he pulled out a
gun. He had a gun on him. So I didn’t know what to
do. It was fight or flight. I chose to fight, your Honor.
When he turned his head I cut him. Then he fled. He
fled northbound. He [went] northbound to Kensington
and Somerset. I didn’t know what else to do, your
Honor. The man had a gun. On the cameras it didn’t
show that. It only showed my hand when I cut him.
[Appellant] further testified, “I feel as though I’m the victim
of the circumstances because he tried to rob me. He was
robbing me. It was a robbery.” On cross-examination,
[Appellant] testified that the person he had cut had
snatched $150 and two packs of K2 out of his hand.
(Trial Court Opinion, filed December 7, 2020, at 2-5) (internal citations and
footnote omitted).
Procedurally, the court convicted Appellant of the above-mentioned
crimes on March 12, 2020. On September 28, 2020, the court sentenced
Appellant to an aggregate term of 33-66 months’ incarceration, followed by
-4-
J-S13028-21
four years of reporting probation. Appellant timely filed a notice of appeal
that day.2 On October 6, 2020, the court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Following the
grant of an extension of time, Appellant timely filed a Rule 1925(b) statement
on November 10, 2020.
Appellant raises two issues for this Court’s review:
Is Appellant entitled to an arrest of judgment on all of the
convictions because the Commonwealth failed to prove that
Appellant did not act in self-defense beyond a reasonable
doubt and thus the evidence was insufficient to sustain the
convictions?
Did the learned trial court commit an abuse of discretion by
admitting the hearsay statement of Ms. Echevarria under
the excited utterance exception to the hearsay rule?
(Appellant’s Brief at 3) (capitalization omitted).
After a thorough review of the certified record, the briefs of the parties,
and the relevant law, we conclude the record supports the trial court’s analysis
of Appellant’s issues. Consequently, we affirm the judgment of sentence for
the reasons stated in the opinion entered by the Honorable Anthony G.
Kyriakakis on December 7, 2020.
Specifically, regarding Appellant’s first issue on appeal, the trial court
noted that it found Appellant’s trial testimony incredible. Additionally, the
court explained, “the other evidence presented at [Appellant]’s trial was more
____________________________________________
2 Appellant filed an amended notice of appeal on October 10, 2020.
-5-
J-S13028-21
than sufficient to disprove [Appellant]’s self-defense claim.” (Trial Court
Opinion at 7). Video evidence from the security camera showed that Appellant
approached the victim, contradicting Appellant’s claim that the victim
approached Appellant. (Id. at 7-8). Statements by Ms. Echevarria, as
recorded by Officer Nuss’s body-worn camera, established that while standing
only a few feet away from the victim, she saw Appellant come up from behind
and stab the victim. (Id. at 8). Video of Appellant after the incident and the
testimony of Officer Nixon further showed Appellant’s mental state as highly
agitated and violent near the time of the incident. (Id.) Appellant admitted
he was under the influence of drugs on the night in question. (Id.) Based on
the foregoing, the court concluded “the evidence clearly established that
[Appellant] did not reasonably believe he was in danger or otherwise act in
self-defense when he stabbed Mr. Luper. His challenge to the sufficiency of
the evidence lacks merit.” (Id.)
With respect to Appellant’s second issue on appeal, the court decided
Ms. Echevarria’s statements fell under the excited utterance exception to the
hearsay rule. (Id. at 9). The record showed that Ms. Echevarria made her
statements in relation to the startling event of Mr. Luper’s sudden stabbing,
which she witnessed from a distance of only a few feet away. (Id. at 9). Her
statements were made at or near the location of the stabbing and within
approximately ten minutes of its occurrence. (Id. at 9-10). Further, she had
been describing the incident to someone else before Officer Nuss had even
-6-
J-S13028-21
approached her. (Id. at 9). She was visibly shaking and speaking quickly
throughout her statements and time interacting with the officers, to such an
extent that Officer Nuss instructed her to breathe. (Id. at 9-10). Additionally,
the security camera footage confirmed the accuracy of Ms. Echevarria’s
statements regarding the location, manner, and perpetrator of the crime. (Id.
at 10). The footage also confirmed her presence at the scene, and Officer
Nuss’s body-camera footage confirmed Ms. Echevarria made the statements
in question. (Id. at 10-11).3
Further, to the extent Appellant argues that admission of the body
camera footage violated his Sixth Amendment right to confrontation,4 the trial
court explained that the primary purpose of questioning Ms. Echevarria was
to address an ongoing emergency, so her statements were not testimonial in
nature. (Id. at 12). Rather, the officers were seeking to “identify and
apprehend a person who, within the past ten minutes, had violently stabbed
____________________________________________
3 We note that in his brief Appellant states “the trial court abused its discretion
because the testimony in question was clearly inadmissible hearsay that was
admitted for the truth of the matter asserted, namely that [A]ppellant waved
around and pointed a gun.” (Appellant’s Brief at 24). Nowhere in the record
is Appellant accused of possessing a firearm. Rather, the evidence showed
that Appellant possessed a knife.
4 The Commonwealth states that Appellant did not make a Sixth Amendment
claim in his Rule 1925(b) statement. Nevertheless, Appellant stated in his
concise statement that Ms. Echevarria’s statements were inadmissible
because they were testimonial in nature, elicited for purposes of prosecution,
and the product of police questioning. As the trial court understood
Appellant’s particular claim and addressed it in the court’s opinion, we decline
the Commonwealth’s invitation to find waiver on this ground.
-7-
J-S13028-21
a victim on the sidewalk of a busy street and was still at large, clearly posing
an ongoing and dangerous threat to others in the area.”5 (Id.) Ms. Echevarria
was already describing the stabbing to a civilian bystander. (Id.) The
questioning was informal in nature, lasted approximately four minutes, and
took place on the sidewalk near the location of the stabbing. (Id.)
Immediately after speaking with her, Officer Nuss radioed the information to
other officers. (Id.) Our review of the record supports the court’s analysis of
Appellant’s issues. Accordingly, we affirm based on the trial court’s opinion.6
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/2021
____________________________________________
5 Appellant argues that the situation was resolved prior to Ms. Echevarria’s
contact with police because SEPTA officers had already apprehended him by
that time. Thus, Appellant insists the questioning of Ms. Echevarria was for
the purpose of prosecution and establishing prior events rather than
addressing an ongoing emergency. Nevertheless, the record shows that the
officers who questioned Ms. Echevarria were unaware Appellant had already
been apprehended at that time.
6 We direct the parties to attach a copy of the trial court’s December 7, 2020
opinion to all future filings pertaining to our disposition of this appeal.
-8-
Circulated 07/12/2021 01:58 PM
0022_Opinion